Pubdate: Sun, 01 Feb 2015
Source: San Jose Mercury News (CA)
Copyright: 2015 San Jose Mercury News
Author: Howard Mintz

Oakland's Medical Marijuana 'Superstore'


Dispensary in Uphill Fight to Stay Open, but Legal Terrain Is Shifting

Even with dozens of states such as California now allowing the sale 
of medical marijuana and a handful of others legalizing weed 
altogether, Oakland's Harborside Health Center, the nation's largest 
medicinal cannabis dispensary, is still locked in a legal fight for 
survival with the federal government.

On Tuesday, Harborside's two-year standoff with the U.S. Justice 
Department reaches a federal appeals court, which is set to consider 
Oakland's novel legal move to block the government's seizure of the 
dispensary through forfeiture laws.

The 9th U.S. Circuit Court of Appeals is reviewing a 2013 lower court 
ruling tossing out Oakland's lawsuit, which argues that a federal 
government shutdown of one of four city-approved and regulated 
medical marijuana outfits harms the city's interests.

Despite that ruling, U.S. Magistrate Judge Maria Elena James has put 
the government's forfeiture case against Harborside on hold while the 
appeals court reviews the issues -- a move that has allowed the 
dispensary to continue to sell medical pot to patients in Oakland, as 
well as its smaller facility in San Jose.

Legal experts say Oakland may have a tough sell with the appeals 
court, given the government's sweeping powers under federal drug 
laws. The government moved to shutter the East Oakland dispensary, 
labeled a medical pot "superstore," because it is so large that it 
was alleged likely to sell to customers who could not prove a medical need.

"The city of Oakland has a really difficult, uphill battle here," 
said former federal prosecutor Rory Little, a Hastings College of the 
Law professor.

Nevertheless, while the case may mark a crucial stage in Harborside's 
attempt to stave off closing an operation that generates more than 
$20 million a year in business, it may not be the final word. Even if 
the 9th Circuit sides with the government, Harborside may lose a 
battle but win the war.

In a recent development, Congress included a provision in December 
spending legislation -- signed by President Barack Obama -- that 
appears to bar the federal government from using resources to 
prosecute medical marijuana providers in the 32 states where it is legal.

U.S. Attorney Melinda Haag, who filed the forfeiture action against 
Harborside, declined to comment on the case. And U.S. Justice 
Department officials, who are defending the government against 
Oakland's lawsuit in the 9th Circuit, have not addressed how the 
legislation affects situations such as Harborside.

But Harborside's supporters are using the legislation to back 
Oakland's arguments, telling the 9th Circuit in court papers that the 
congressional action "reaffirms the government's policy of 
non-prosecution of persons acting in compliance with state and 
municipal laws regarding medical marijuana."

Steve DeAngelo, Harborside's co-founder, could not be reached for 
comment, but he has vowed repeatedly to fight to keep his doors open 
to medical marijuana patients. He has Oakland's strong support, as 
city officials maintain keeping it operating is important for 
everything from tax revenue to alleviating black market pot sales on 
city streets.

"The government's position on medical marijuana is schizophrenic," 
said Cedric Chao, the lawyer representing Oakland. "The whole case 
makes the government uncomfortable."

The Obama administration, at the direction of Attorney General Eric 
Holder, in recent years shifted course on medical marijuana 
enforcement, for the most part abandoning prosecution in states where 
medical weed is legal. California voters approved medical pot in 1996.

But there have been some crackdowns, primarily aimed at dispensaries 
proliferating without much oversight in areas such as near schools 
and parks. The Harborside action, filed two years ago, came before 
some of the more recent shifts in Justice Department enforcement.

Government lawyers, however, still argue that Oakland has no legal 
basis to block the Harborside forfeiture and interfere with 
enforcement of federal drug laws. "The city cannot plausibly claim to 
be in the zone of interests protected by the federal law at issue 
here," Justice Department lawyers told the 9th Circuit.

Oakland concedes the city's argument is unique -- but insists that 
Harborside's situation is likewise unique.

"Oakland is clearly harmed," Chao said.
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MAP posted-by: Jay Bergstrom